Audie Cornish talks to Tom Goldstein of the website SCOTUSblog for analysis of Wednesday's arguments about gay marriage at the Supreme Court.

AUDIE CORNISH, HOST:

For some analysis of today's arguments, we turn again to Tom Goldstein. He's publisher and regular contributor to the website SCOTUSblog. Tom, good to have you back.

TOM GOLDSTEIN: Thank you so much.

CORNISH: All right. So this time around, I had a little bit more trouble following along. And at the beginning of the arguments there was this issue of jurisdiction which got very technical. What's the upshot of this question?

GOLDSTEIN: Well, so the justices are struggling with whether they can even decide the case. It's a puzzle because there's a question of the constitutionality of a federal law. But the federal government, the Obama administration, won't defend the law. And so they're trying to figure out, how is it that the case gets here if the parties to the case, Mrs. Windsor who wants the estate tax deduction, and the federal government agree that she ought to win.

At the same time, it's such an important question that they believe, as the Supreme Court, they have to be able to decide it. The upshot, you ask, I think is the justices will find a way to decide that they can decide.

CORNISH: Was there any hints in any of the question you heard that give us an idea of what they're thinking on this, though?

GOLDSTEIN: I think, in the end, that they'll say that the federal government has enough of an interest because it's going to have to foot the bill. It's going to have to write Mrs. Windsor a check for $360,000 and that gives them a stake in the case.

CORNISH: That's the refund for the taxes she had to pay.

GOLDSTEIN: Exactly right.

CORNISH: Now, let's talk a little bit about what they call the merits of the case. What are some of the big arguments that we heard here?

GOLDSTEIN: Well, there are really two different branches of looking at the DOMA case. One is the way we've always thought of it, sort of, and that's as a gay rights case, of course. And that is the idea is, hey, if a state wants to recognize a same-sex marriage, for Congress to pass a law that says we'll recognize other kinds of marriages, but not that one, well, that discriminates against homosexuals, against same-sex couples.

And that's said to violate the Constitution. It's a form of discrimination, that you can't call out one group that deserves protected treatment. And that's the - the more liberal members of the court might be more inclined in that direction and there was a lot of discussion in the case today about is there a rational for if this is discrimination, what would be the justification for it?

So that's one of the two different ways in looking at this.

CORNISH: And then the very other classic issue is states' rights.

GOLDSTEIN: Exactly right. And the idea here is, well, don't think about it as a gay rights case at all. Just think about it as the federal government adopting a law that affects marriage in 1,100 different provisions. And the question from the court was, hey, are the states really getting to define marriage in the way that we always thought they could if this federal government feels free to come along and redefine a huge swath of the implications of marriage for these states that want to recognize same-sex marriage.

And maybe no matter that this is a question involving same-sex couples, but just that the federal government is intruding on the rights of the states. And so there are two different approaches that were discussed today.

CORNISH: Now, could you see the court coming together or even moving towards a five-member majority with these two different approaches?

GOLDSTEIN: Well, it's a puzzle because you're talking about really two different world views when it comes to the case. We have Justice Kennedy who is just rightly described as the pivot in the court and that is, on an ideological question, you're not going to get five votes ordinarily without Justice Kennedy. And so his vote's incredibly important.

And Justice Kennedy seems to conceive of the case as a states' rights case and he asked a whole series of questions that said to Paul Clement, the advocate for the bipartisan legal advisory group attempting to defend DOMA, isn't this really a dramatic intrusion on the rights of the states to do the things that historically our system of powers has always given them.

And so, Justice Kennedy really seems very much to only want to look at it through that lens. But the more liberal members of the court do conceive of this as discrimination against homosexuals and against same-sex couples. So they'd have to come together. And if Justice Kennedy wants to do something, you're going to have to come to him, I think, is the basic answer.

And what we saw in today's oral argument, and heard, is that the left of the Supreme Court is willing to come to him. And we heard from several of the more liberal members of the Supreme Court a willingness to re-conceive of the case as a states' rights case. And so if I were to guess where this is going, it's going to be in a five-member opinion by Justice Kennedy saying that DOMA violates the rights of the states because it intrudes too much on their ability to define marriage.

CORNISH: Now, looking back on the last two days, what does this mean, say, for California's Prop 8?

GOLDSTEIN: Oh, it's a real puzzle for gay rights advocates and probably a real worry. Because if the Supreme Court says we're invalidating DOMA because it's the states' rights to define marriage, what does that mean for California's right in Proposition 8 to say, well, it California marriage is not for same-sex couples?

And that could take a victory for the gay right side in the DOMA case, and potentially turn it into a much more significant defeat on the fundamental question that they care tremendously about, of whether there is a right to same-sex marriage.

And so, the struggle in the Supreme Court right now seems to be actually can they avoid deciding yesterday's case, and leave that issue alone and come back to it maybe never. But maybe in five or 10 years and almost let history and culture decide, because that's the direction things are going.

CORNISH: When should we expect a ruling on these two cases?

GOLDSTEIN: This is not going to come soon. The justices will take as much time as they can, which means the last week in June - one of the last days of the last week, probably the last Thursday.

NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR’s programming is the audio.